Sinkovitz v. Rolston et al

Filing 3

REPORT AND RECOMMENDATION re 1 Complaint filed by Paul Sinkovitz in that it is RECOMMENDED that this action be dismissed pursuant to 28 U.S.C. § 1915(e)(2) for failure to state a claim on which relief may be granted. Objections to R&R d ue by 9/25/2017. Response to objections must be filed within fourteen (14) days after being served with a copy. Signed by Magistrate Judge Chelsey M. Vascura on 9/11/2017. (kdp)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.) Modified text on 9/11/2017 (kdp).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

PAUL SINKOVITZ,
Plaintiff,
Civil Action 2:17-cv-712
Judge James L. Graham
Magistrate Judge Chelsey A. Vascura

v.

G. DREW ROLSTON, et al.,
Defendants.

REPORT AND RECOMMENDATION
Plaintiff, Paul Sinkovitz, a state inmate who is proceeding without the assistance of
counsel, brings this action against attorney G. Drew Rolston and Judge Jeffrey Simmons, a statecourt judge. This matter is before the Court for the initial screen of Plaintiff’s Complaint under
28 U.S.C. §§ 1915(e)(2) and 1915A to identify cognizable claims and to recommend dismissal of
Plaintiff’s Complaint, or any portion of it, which is frivolous, malicious, fails to state a claim
upon which relief may be granted, or seeks monetary relief from a defendant who is immune
from such relief. 28 U.S.C. § 1915(e)(2); see also McGore v. Wrigglesworth, 114 F.3d 601, 608
(6th Cir. 1997). Having performed the initial screen, for the reasons that follow, it is
RECOMMENDED that the Court DISMISS this action pursuant to § 1915(e)(2) for failure to
state a claim on which relief may be granted.
I.
Congress enacted 28 U.S.C. § 1915, the federal in forma pauperis statute, seeking to
“lower judicial access barriers to the indigent.” Denton v. Hernandez, 504 U.S. 25, 31 (1992).

In doing so, however, “Congress recognized that ‘a litigant whose filing fees and court costs are
assumed by the public, unlike a paying litigant, lacks an economic incentive to refrain from
filing frivolous, malicious, or repetitive lawsuits.’” Id. at 31 (quoting Neitzke v. Williams, 490
U.S. 319, 324 (1989)). To address this concern, Congress included subsection (e)1, which
provides in pertinent part as follows:
(2) Notwithstanding any filing fee, or any portion thereof, that may have been
paid, the court shall dismiss the case at any time if the court determines that-*

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(B) the action or appeal-(i) is frivolous or malicious;
(ii) fails to state a claim on which relief may be granted; or . . . .
28 U.S.C. § 1915(e)(2)(B)(i) & (ii); Denton, 504 U.S. at 31. Thus, § 1915(e) requires sua sponte
dismissal of an action upon the Court’s determination that the action is frivolous or malicious, or
upon determination that the action fails to state a claim upon which relief may be granted.
To properly state a claim upon which relief may be granted, a plaintiff must satisfy the
basic federal pleading requirements set forth in Federal Rule of Civil Procedure 8(a). See also
Hill v. Lappin, 630 F.3d 468, 470–71 (6th Cir. 2010) (applying Federal Rule of Civil Procedure
12(b)(6) standards to review under 28 U.S.C. §§ 1915A and 1915(e)(2)(B)(ii)). Under Rule
8(a)(2), a complaint must contain a “short and plain statement of the claim showing that the
pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Thus, Rule 8(a) “imposes legal and factual
demands on the authors of complaints.” 16630 Southfield Ltd., P’Ship v. Flagstar Bank, F.S.B.,
727 F.3d 502, 503 (6th Cir. 2013).
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Formerly 28 U.S.C. § 1915(d).
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Although this pleading standard does not require “‘detailed factual allegations,’ . . . [a]
pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause
of action,’” is insufficient. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555 (2007)). A complaint will not “suffice if it tenders ‘naked
assertion[s]’ devoid of ‘further factual enhancement.’” Id. (quoting Twombly, 550 U.S. at 557).
Instead, to survive a motion to dismiss for failure to state a claim under Rule 12(b)(6), “a
complaint must contain sufficient factual matter . . . to ‘state a claim to relief that is plausible on
its face.’” Id. (quoting Twombly, 550 U.S. at 570). Facial plausibility is established “when the
plaintiff pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Id. “The plausibility of an inference depends on
a host of considerations, including common sense and the strength of competing explanations for
the defendant’s conduct.” Flagstar Bank , 727 F.3d at 504 (citations omitted). Further, the
Court holds pro se complaints “‘to less stringent standards than formal pleadings drafted by
lawyers.’” Garrett v. Belmont Cnty. Sheriff’s Dep’t., 374 F. App’x 612, 614 (6th Cir. 2010)
(quoting Haines v. Kerner, 404 U.S. 519, 520 (1972)). This lenient treatment, however, has
limits; “‘courts should not have to guess at the nature of the claim asserted.’” Frengler v. Gen.
Motors, 482 F. App’x 975, 976–77 (6th Cir. 2012) (quoting Wells v. Brown, 891 F.2d 591, 594
(6th Cir. 1989)).
II.
As best as the Court can discern, in his Complaint and the Exhibit he attaches, Plaintiff
alleges that Defendant Judge Simmons presided over a domestic matter in which he was a party.
Plaintiff appears to allege that Judge Simmons’ actions in that case in some way violated his

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constitutional rights. Although it is unclear, Plaintiff may also be seeking to assert a claim under
the Racketeer Influenced and Corrupt Organizations Act (“RICO”).
No matter how liberally the Court construes Plaintiff’s Complaint, his claims against
Defendant Judge Simmons fail. “It is well-established that judges enjoy judicial immunity from
suits arising out of the performance of their judicial functions.” Brookings v. Clunk, 389 F.3d
614, 617 (6th Cir. 2004) (citing Pierson v. Ray, 386 U.S. 547, 553-54 (1967)). Judicial
immunity is overcome only if the actions taken are not within the judge’s judicial capacity or if
the actions, “though judicial in nature, [are] taken in the complete absence of all jurisdiction.”
Mireles v. Waco, 502 U.S. 9, 11 (1991) (citations omitted). A review of Plaintiff’s Complaint
and its Exhibit reveals that those exceptions do not apply here. Thus, because Judge Simmons is
entitled to absolute judicial immunity, it is recommended that Plaintiff’s claims against Judge
Simmons be dismissed.
Although Plaintiff names attorney G. Drew Rolston as a Defendant, neither his
Complaint nor the attachment to his Complaint contain allegations that even mention Mr.
Rolston, let alone state a cognizable claim. It is therefore recommended that the claims against
attorney G. Rolston be dismissed.
III.
For the reasons set forth above, it is RECOMMENDED that this action be dismissed
pursuant to 28 U.S.C. § 1915(e)(2) for failure to state a claim on which relief may be granted.
PROCEDURE ON OBJECTIONS
If any party seeks review by the District Judge of this Report and Recommendation, that
party may, within fourteen (14) days, file and serve on all parties objections to the Report and

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Recommendation, specifically designating this Report and Recommendation, and the part in
question, as well as the basis for objection. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).
Response to objections must be filed within fourteen (14) days after being served with a copy.
Fed. R. Civ. P. 72(b).
The parties are specifically advised that the failure to object to the Report and
Recommendation will result in a waiver of the right to de novo review of by the District Judge
and waiver of the right to appeal the judgment of the District Court. See, e.g., Pfahler v. Nat’l
Latex Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that “failure to object to the
magistrate judge’s recommendations constituted a waiver of [the defendant’s] ability to appeal
the district court’s ruling”); United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005) (holding
that defendant waived appeal of district court’s denial of pretrial motion by failing to timely
object to magistrate judge’s report and recommendation). Even when timely objections are filed,
appellate review of issues not raised in those objections is waived. Robert v. Tesson, 507 F.3d
981, 994 (6th Cir. 2007) (“[A] general objection to a magistrate judge’s report, which fails to
specify the issues of contention, does not suffice to preserve an issue for appeal . . . .” (citation
omitted)).

/s/ Chelsey M. Vascura
CHELSEY M. VASCURA
UNITED STATES MAGISTRATE JUDGE

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